Bruce Messer and Timothy P'simer v. Fran Curci, W. Gayle Foust, Kelly Newton, and Thomas Lykins

881 F.2d 219, 4 I.E.R. Cas. (BNA) 1130, 1989 U.S. App. LEXIS 10736, 1989 WL 81591

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 25, 1989
• Docket: 85-5626
• Status: Published

Opinions

BOGGS, Circuit Judge.

Plaintiffs contend that an applicant for government employment states a claim for violation of the applicant’s first amendment rights by alleging that preference was given to other applicants because of their political activities. We hold that such allegation of political patronage hiring, standing alone, does not state a claim for violation of 42 U.S.C. § 1983, and thus we affirm the judgment of the district court dismissing the complaint.

I

Plaintiffs Bruce Messer and Timothy P’Simer challenged the decision of the Kentucky Department of Parks not to hire them for the 1984 season as seasonal maintenance workers at the Carter Caves State Resort Park in Carter County, Kentucky. The positions generally run for about eight months, during the warmer parts of the year. The exact number of positions available is established each year, and may vary. Plaintiff Messer had held such positions for the eight years preceding the 1984 season. Plaintiff P’Simer had held positions for the three preceding years. Plaintiffs note that they followed “the practice of annual reapplication” for these positions for the 1984 season, but discovered that they were not among those hired.¹

Plaintiffs claim that the defendants, who are various Kentucky state or Democratic party officials, conspired to refuse to hire them because of their political beliefs and because they did not work in the successful 1983 gubernatorial campaign of Governor Martha Layne Collins.² Plaintiffs’ legal theory was that the decisions in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct 1287, 63 L.Ed.2d 574 (1980), which deal only with discharges based upon political affiliation, should be extended to cases of failure to hire based on similar grounds. The district judge, in a well-reasoned opinion, 610 F.Supp. 179, rejected plaintiffs’ contention and granted defendants’ motion to dismiss for failure to state a claim on which relief could be granted. Fed.R.Civ.P. 12(b)(6). A divided panel of this court reversed, reluctantly, on the authority of Avery v. Jennings, 786 F.2d 233 (6th Cir.), cert. denied, 477 U.S. 905, 106 S.Ct. 3276, 91 L.Ed.2d 566 (1986). Messer v. Curci, 806 F.2d 667 (1986). The panel’s decision was vacated, and rehearing en banc granted, by order of January 21, 1987.

II

The major sources of law on this issue are the Supreme Court’s decisions in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). In Elrod, a divided court issued three opinions, none commanding a majority, but clearly held that public employees could not be dismissed because of their political affiliation, loyalties, or beliefs, except from “policy-making” or “confidential” positions. The court rested its opinion on the belief that the first amendment rights of speech and association were violated by such specific punishment of individuals whose careers had brought them to the specific employment. 427 U.S. at 356-8, 96 S.Ct. at 2681-2; id. at 375, 96 S.Ct. at 2690 (Stewart, J., concurring). In Branti, a 6-member majority of the Court reaffirmed Elrod and extended it to cover discharge for political affiliation even of office-holders in professional positions, such as lawyers, so long as they were not in policy-making positions. 445 U.S. at 518-20, 100 S.Ct. at 1294-95.

Plaintiffs initially contend that this case should be treated as a discharge case under Elrod and Branti. However, this case is not similar to other cases in which a “failure to rehire” was treated as a discharge from continuing employment. In Branti, the Court determined that the failure to rehire the plaintiffs was a discharge even though, in form, the terms of their appointments had expired at the same time as that of their politically-appointed superior. The Court said that “the lack of a reasonable expectation of continued employment is not sufficient to justify a dismissal based solely on an employee’s private political beliefs.” 445 U.S. at 512 n. 6, 100 S.Ct. at 1291 n. 6. Thus, the Court simply held that what occurred in Branti was in fact still a dismissal. On Day 1 plaintiffs had a job, and on Day 2 they were to be terminated from that job.

In the present case, plaintiffs were not employed by the State for at least four months before the commencement of the positions for which they had applied. It is undisputed that state law provides no preference for appointment to such positions based on previous employment, and that the positions themselves simply do not exist during the off-season and are recreated by action of the Commissioner of Personnel for each succeeding year. See KRS § 18A.005(20); Dist.Ct. opinion at 4-5. Thus, under state law, Messer and P’Simer had no continuing employment status. Plaintiffs were among a number of applicants for these positions, and the failure to hire them can in no way be denominated as a dismissal under Branti.

Similarly, all the cases that have applied the Branti doctrine to failures to rehire have involved situations where a worker was informed on non-reappointment at the end of a term of employment, thus causing an actual discharge. See, e.g., McConnell v. Adams, 829 F.2d 1319, 1322-24 (4th Cir.1987), cert. denied sub nom. Virginia ex rel. State Board of Elections v. Kilgore, — U.S. -, 108 S.Ct. 1731, 100 L.Ed.2d 195 (1988); Furlong v. Gudknecht, 808 F.2d 233, 237-8 (3rd Cir.1986); Horton v. Taylor, 767 F.2d 471, 473 n. 1 (8th Cir.1985); McBee v. Jim Hogg County, Texas, 730 F.2d 1009, 1015 (5th Cir.1984) (en banc). In the case at hand, the plaintiffs were not employed by the State at the time of the contested decision, and stood in the position of applicants for recreated seasonal positions, for which they could have failed of employment for any number of reasons, including the political patronage reasons actually involved in this case. Plaintiffs’ own complaint makes this distinction in speaking of defendants’ action as “denying ... Messer and P’Simer their positions,” but as “terminating Damron.” Thus, in this appeal, plaintiffs are in the position of any applicant who is not hired because preference has been given to others for patronage reasons.

Ill

The plurality opinion in Elrod clearly expresses a strong disapproval of the practice of patronage in all of its manifestations. Elrod, 427 U.S. at 353-56, 364-67, 96 ;³ see also, Branti, 445 U.S. at 518-20, 100 S.Ct. at 1294-95. However, both cases carefully limited the reach of their majority holding. In Elrod, the two Justices whose votes were necessary to make up the five-member majority specifically stated:

In particular, [this case] does not require us to consider the constitutional validity of a system that confines the hiring of some governmental employees to those of a particular political party, and I would intimate no views whatever on that question.

Elrod, 427 U.S. at 374, 96 S.Ct. at 2690 (Stewart and Blackmun, JJ., concurring).

In Branti, the Court stated:

In light of the limited nature of the question presented, we have no occasion to address petitioner’s argument that there is a compelling governmental interest in maintaining a political sponsorship system for filling vacancies in the public defender’s office.

Branti, 445 U.S. at 513 n. 7, 100 S.Ct. at 1292.

The Supreme Court cases do not require us to find constitutional fault in a system permitting patronage hiring. The options do lay out a rubric for balancing the cost of patronage in the “restraint it places on freedoms of belief and association,” Elrod, 427 U.S. at 355, 96 S.Ct. at 2680, with the state interests in effective government; id. at 364, 96 S.Ct. at 2685. Thus, we turn to an analysis of the comparisons between patronage hiring and patronage dismissals, and an analysis of the Elrod factors in that context.

Clearly, pure patronage hiring does involve use of the resources of government to create a potential cost (and a potential benefit) to an individual exercising the right to speak and act on political issues. This has not been viewed by the Supreme Court as a per se unconstitutional impairment, in that the Court has reaffirmed the practice of patronage dismissals for confidential and policy-making positions. See, Branti, 445 U.S. at 517-19, 100 S.Ct. at 1294-95. There are a number of distinctions, of considerable practical importance, between the first amendment costs of patronage firing of existing workers, and patronage hiring. First, dismissal from employment is inherently a specific punishment of specific people for activities or beliefs, past or present. Patronage hiring based on past activity or affiliation, as in the present case, simply recognizes a benefit or cost of past choices. Had the election gone differently {see supra n. 2), the damage to plaintiffs’ employment chances might instead have turned out to be a boon.

Second, as distinct from the Communist and loyalty oath cases cited in Elrod (Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Wieman v. Updegraff 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952)), no group is barred perpetually by law from holding any position. In many areas of the country, the political parties are reasonably competitive. In most areas, political factions are competitive. In addition, the variety of political levels, national, state, and local, can make a detriment at one level into an advantage at another. If one is very strongly disadvantaged at the local level by belonging to a party that is in the decided minority, that may be a great advantage if that party triumphs at the state or national level, as in the long-standing phenomenon (now defunct) of “post-office Republicans” in the formerly “Solid South.”

Against this impairment of first amendment interests we must balance the state’s interests. The prospect of employment at the behest of a successful candidate may be a significant incentive to political effort, thus contributing to the “robust and wide-open” debate frequently held up as a democratic exemplar. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964). Political activism has a significant cost in time, energy and emotion, and the prospect of employment on behalf of one’s ideals can be a significant factor in overcoming those costs. The motives for such activism can be both crass and sublime. Some may be motivated by any job whose prospects may be better than in private employment. Others may be motivated by the opportunity to advance in practice the goals for which one argued in theory. Certainly this latter desire is not met only through “poli-cymaking jobs.”

In addition, when a new administration assumes office, whether it be of a different party, or a different faction from within the same party, its opportunities to implement its democratic mandate may be enhanced significantly by patronage hiring. The success of an administration and its public posture may well be decided more by the demeanor and esprit of the office manager, garbage collector, and road foreman than by the loyalty of the “policymaking” chief assistant to the assistant chief of some bureau. A new way of doing things, a new style of dealing with the public, a new constellation of social or political forces, may well be impossible to implement without a significant change in the personnel of public administration. Patronage hiring, even in the absence of patronage dismissal,. allows such forces to come into play more rapidly than would a holding that, in effect, reads into the Constitution a particular philosophy of the Civil Service.

The above state interests significantly outweigh the possible first amendment impairment resulting from patronage hiring. This is particularly evident when we consider non-policymaking positions, for it seems anomalous that confidential and policymak-ing positions are exempt from the current ban on patronage dismissals (and presumably from the sought-for ban on patronage hiring), Elrod, 427 U.S. at 367-69, 96 S.Ct. at 2686-87, for it is exactly the people most likely to be active in political speaking who are most likely to be affected or chilled by political choices in policymaker hiring. Every man’s and every woman’s individual right to speak is equally precious, but more prominent speakers may contribute most to a robust public debate. Thus, there may well be more actual chilling of debate if a Jeane Kirkpatrick may effectively foreclose appointment by her native Democrats, or a John Anderson by his native Republicans, by speaking out, than when ordinary workers reduce their state employment opportunities by failing to participate in particular political activity. Clearly, the level of impairment of speech here is less than that involved in policymaking positions, and the state’s interests here are similar.

In comparing patronage preference in hiring to dismissal from existing employment, it appears that both aspects of the balance point to a significant difference. In recent cases, the Court has shown increasing concern for the rights of those already employed, and the heightened constraints on government action necessary because of that importance. Compare Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 574-79, 104 S.Ct. 2576, 2585-88, 81 L.Ed.2d 483 (1984) and United Steelworkers v. Weber, 443 U.S. 193, 208, 99 S.Ct. 2721, 2729, 61 L.Ed.2d 480 (1979) with Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 282-84, 106 S.Ct. 1842, 1851-52, 90 L.Ed.2d 260 (1986). As noted in Wy-gant, the pain to the individual from a certainty of loss of existing employment is much greater than the loss of some possibility of employment in one of a number of possible employment opportunities. On the other hand, the potential advantage to an effective and vigorous government of choosing sympathetic and enthusiastic employees is much greater than the gain from dismissal of existing employees who are, by explicit hypothesis, Elrod, 427 U.S. at 375, 96 S.Ct. at 2690, performing satisfactorily and are subject to dismissal for any deviations from satisfactory performance.

Under these circumstances, we cannot say that it is constitutionally impermissible for an elected official to implement a preference for political supporters in government employment where not otherwise controlled by statute. Such a practice, without more, disadvantages in only a modest way any individual not given preference and advantages in only a modest way any given individual from among those who may be given preference, with regard to a certain number of public jobs out of all the employment opportunities available.

This result is generally in line with the results reached by other federal courts. Courts applying Branti have distinguished very sharply between cases in which the worker raising a claim of damage from patronage was already employed and those in which the worker was not employed. Most cases have held that an allegation of any detriment to an employee from exercise of free speech rights raises a constitutional claim. Lieberman v. Reisman, 857 F.2d 896 (2d Cir.1988); Bennis v. Gable, 823 F.2d 723, 731 (3rd Cir.1987); Bart v. Telford, 677 F.2d 622, 625 (7th Cir.1982). Some cases have restricted the full application of Branti to discrimination against employed workers that is the equivalent of a discharge. Rutan v. Republican Party of Illinois, 848 F.2d 1396 (7th Cir.1988), aff'g 641 F.Supp. 249 (C.D.Ill.1986), aff'd on reh’g en banc, 868 F.2d 943 (7th Cir.1989), petition for cert. filed, 57 U.S.L.W. 3781 (U.S. May 17, 1989) (No. 88-1872); Delong v. United States, 621 F.2d 618, 623-24 (4th Cir. 1980).

In the case of state contractors, or workers who are characterized as independent contractors rather than state employees, the circuits have consistently refused to recognize claims either for denial of new contracts, LaFalce v. Houston, 712 F.2d 292, 294 (7th Cir.1983); cert. denied, 464 U.S. 1044, 104 S.Ct. 712, 79 L.Ed.2d 175 (1984), or removal from existing contracts or contractor positions. Horn v. Kean, 796 F.2d 668 (3rd Cir.1986) (en banc); Sweeney v. Bond, 669 F.2d 542, 545-56 (8th Cir.), cert. denied sub nom. Schenberg v. Bond, 459 U.S. 878, 103 S.Ct. 174, 74 L.Ed.2d 143 (1982).

With regard to applicants for employment, our research agrees with the recent canvassing of the law by Judge Breyer, in which he states:

[W]e have found no federal case holding that it violates the federal Constitution to use political criteria for hiring state employees, even in circumstances where it might violate the federal [Constitution to dismiss them for political reasons.

Estrada-Adorno v. Gonzalez, 861 F.2d 304, 305 (1st Cir.1988) (emphasis in original). This decision goes on to discuss our Circuit’s opinion in Avery v. Jennings, 786 F.2d 233 (6th Cir.1986), describing it as on point and standing for the proposition that the use of “political factors in hiring does not violate the Constitution.” 861 F.2d at 305. It is true that in Avery, and in a scattering of other cases, there is dicta to the effect that firing and hiring should be treated the same.⁴ See, e.g., Avery, 786 F.2d at 234; Rosenthal v. Rizzo, 555 F.2d 390, 392 (3rd Cir.) (dictum) cert. denied, 434 U.S. 892, 98 S.Ct. 268, 54 L.Ed.2d 178 (1977); Harris v. Conradi, 675 F.2d 1212, 1217 (11th Cir.1982) (dictum); Aufiero v. Clarke, 489 F.Supp. 650, 654 (D.Mass.1980) (dictum), aff'd, 639 F.2d 49 (1st Cir.), cert. denied, 452 U.S. 917, 101 S.Ct. 3052, 69 L.Ed.2d 421 (1981). However, the only courts to address the distinction directly, in Rutan and LaFalce, have come to the opposite conclusion and we believe the results in these cases are sound.

As even Judge Cudahy, partially dissenting from the broader ruling in Rutan allowing some unfavorable patronage personnel actions short of dismissal, has said:

It seems to me that removing politics from the dispensation of government jobs is too daunting a task even for such all-purpose problem-solvers as the federal courts. At least the task should not be undertaken without some clearer signal from the Supreme Court. Patronage hiring practices are of great antiquity. There may be some good in them in some circumstances but, most importantly, rooting them out is something the federal courts could not accomplish without incurring staggering and, I should think, clearly disproportionate costs. The patronage hiring practices involved here seem unvarnished and redolent of another era. They could, however, be dealt with by a properly designed civil service system. This is not a job for the federal courts-yei.

Rutan, 868 F.2d at 958 (Cudahy, J., concurring and dissenting) (emphasis in original).

None of this discussion is intended to take a position on the questions of whether patronage hiring is good policy or good morals, either in this particular situation, or in any situation at all. We believe that is a question for the Executive and Legislative branches. We hold only that the arguments for the virtues or regrettable necessities of patronage, including its longstanding history and practice by many of those who participated in the creation and enactment of the Constitution and the first amendment, are sufficient to support the existence of a state interest in patronage hiring that outweighs potential first amendment infringements.

Questions of the wisdom of patronage hiring have long roiled the political history of our nation. Thomas Jefferson appointed his campaign manager, John Beckley, to the position of Librarian of Congress, a task that could hardly be considered a “pol-icymaking” adjunct of the President. See R.M. Johnstone, Jr., Jefferson and the Presidency 105-06 (1978); M. Smelser, The Democratic Republic 1801-1815 at 78 (1968) (“So partisan was Beckley that he contrived to make it difficult for Federalists to use the Library.”). Justice Powell has pointed out the many other revered American figures who practiced patronage, while an equally distinguished list have decried it and sought its modification or elimination. Elrod, 427 U.S. at 378-80, 96 S.Ct. at 2691-92 (Powell, J., dissenting). This controversy was not settled at the Philadelphia Convention or by the submission to the states and ratification of the first amendment. Insofar as patronage influence on initial hiring is concerned, it is a struggle that must be fought out in the political arena, not in the courts.

The judgment of the district court dismissing this suit is AFFIRMED.

1 . A third plaintiff, Thomas Damron, was employed for the 1984 season, but discharged after a month "because he was a Republican.” Dam-ron was later reemployed, but sued for damages for the period during which he was not employed. This claim was settled upon the payment of a stipulated amount as back pay, and the suit was dismissed insofar as it applied to Damron.

2 . Governor Collins, a Democrat, was elected in November 1983. It does not appear in the record whether the "work” desired was in the primary election, the general election, or both. Governor Collins was nominated in a hard-fought primary against two major opponents in which she secured less than 34 percent of the vote, and won by a margin of 4,532 votes. She was victorious in the general election by 107,024 votes. R. Scammon and A. McGillivray, America Votes 16, at 195, 199 (1985).

3 . Judge Martin’s dissent (pp. 227-28) cites these very passages to considerable effect. However, they are the opinion of only the three members of the Court who joined in that opinion.

4 . Even if Avery is taken as a square holding, it is not, contrary to Judge Martin’s dissent (p. 228), a precedent that "requires” us to rule for plaintiffs. En banc consideration is, of course, the traditional means for overruling a precedent, Sixth Circuit Court Policies, § 11.3.